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In the UK over the past couple of years, there have been spates of climate protest groups (Extinction Rebellion, Just Stop Oil, etc), causing public nuisance, including:

  • Gluing themselves to road surfaces to block them
  • Scaling bridges to block roads
  • Gluing themselves to/climbing on top of tube (metro) trains to disrupt the service

Last year, there was much discussion about injunctions being taken out against the groups to prevent such behaviour. I am confused as to why this is required.

As I understand it, all of the activities mentioned above are already criminal offences (blocking a highway, trespass with intention of blocking a highway, criminal damage, etc). I also believe (perhaps incorrectly), that inciting somebody else to commit a crime (e.g. the organisers of one of these groups encouraging their members to behave like this) is also illegal. What is the purpose of injunctions, given that much of this behaviour is illegal under existing legislation?

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I think the main reason is that in specific prosecutions such behaviour may not be found to constitute any of those criminal offences. While on the face of it the behaviour is illegal, the court is also obliged to take into account the rights to freedom of expression, of assembly and association, in the Human Rights Act 1998. But a court's injunction sets out in black and white the restrictions on behaviour after considering the human rights aspects of the case, and breach of the order is a contempt of court (not a criminal offence as such, but punishable by imprisonment and/or a fine).

Such injunctions are an additional tool for trying to mitigate or deter the behavior to which you refer and in a sense they are more convenient than criminal prosecutions.

Some considerations and more detail in no particular order:

Standard of proof differences

You mention relevant criminal offences. These necessarily have the criminal 'standard of proof'. The trier of fact (the jury at jury trial; the magistrate or judge at non-jury trial), having considered all the relevant evidence, must be sure the defendant is guilty.

However, the entity seeking an injunction (the claimant) does not need to meet that standard of proof to obtain an injunction that includes restrictions on behaviour. They need only persuade the court there is a real and imminent risk of a civil wrong for which they merit relief, or that there is a serious issue to be tried at a later date for which they merit relief until the conclusion of that trial.

Criminal prosecution delays

For the past two years to the time of writing this answer, circumstances have been such that if there were a criminal trial (which is by no means guaranteed), it may be scheduled months, perhaps even a year or two, in the future. But the claimant (and the wider public) may want relief 'now' and the defendant(s) might be free to continue their behaviour in the meanwhile, the defendant might not be held in custody pending trial.

Due to delays, some defendants have been in custody for several months pending trial and this isn't satisfactory either, particularly if they are innocent: "everyone is entitled to a fair and public hearing within a reasonable time" (article 6 Human Rights Act 1998).

The behaviour may not be found to constitute a criminal offence

In this context, the law providing for the criminal offence must be read 'compatibly' with the human rights legislation - the qualified rights to freedom of expression, to assembly and association. Meaning, is this criminal justice system reponse to that behaviour provided for in law, necessary and proportionate, in pursuit of a legitimate aim, protecting the rights and freedoms of others, and were there no alternative and less restrictive responses?

Now, some of those elements are a definite yes (e.g. trespass to or obstruction of the highway are provided for in law), others may be arguable. But in any case, the police, prosecution and the court (if it gets that far) must consider those things, must do that weighing up - it is not explicitly provided for in the legislation that creates those criminal offences. The courts have not found every protest on a highway to constitute a trespass to (Director of Public Prosecutions v. Jones and Another) or obstruction of a highway (Director of Public Prosecutions (Respondent) v Ziegler and others (Appellants)).

On the other hand, when these claimants seek an injunction the court does that weighing up and may consider alternative, less restrictive approaches (the claimant submits a wishlist, the defendant or court may push back). The court will say "Yes, this is in pursuit of a legitimate aim and necessary to protect the rights and freedoms of the claimant and the wider public, however X is disproportionate, Y is proportionate, the defendants may go in area A but not area B, this time period is disproportionate, that time period is proportionate," and so on.

So the claimant and the police are now armed with that injunction, the claimant will publish it, defendants are aware of its contents and fellow protesters ought to be made aware of it. It's there in black-and-white what is restricted and anyone breaching the injunction could be found guilty of contempt of court (punishable by up to two years in prison and/or unlimited fine or asset seizure; must be proved to the criminal standard).

Example judgments about injunctions including lists of restrictions

Here are some examples from the context that include different kinds of restrictions by court order and the court's weighing up of the competing interests of the claimants, the defendants and the wider public.

Shell UK Oil Products Ltd v Persons Unknown [2022] EWHC 1215 (QB) (20 May 2022) The claimant sought (and succeeded) to maintain an injunction that was granted on an emergency basis, its restrictions set out at para 20, conclusion at para 70.

National Highways Ltd v Heyatawin [2021] EWHC 3078 (QB) - see para 7 for restrictions, the court found some protesters breached the so-called M25 Order and the court ordered their immediate imprisonment (para 66).

National Highways Ltd v Persons unknown (blocking traffic) [2021] EWHC 3081 (QB) (17 November 2021) - the reasons for the decision to not set aside the ex parte interim injunction made by Linden J on 25 October 2021, some restrictions at para 4.

High Speed Two (HS2) Ltd & Anor v Four Categories of Persons Unknown & Ors [2022] EWHC 2360 (KB) (20 September 2022) - restrictions at para 188.

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    Note that the Guardian article linked to is pure clickbait - it has a highly misleading (or completely inaccurate) headline. It fails to cite a single case of an individual held for six months. The closest is one who had been held for two months at the time of the article, who "will have been incarcerated" for 6 months by the time his then-scheduled court date comes around. It also buries the context much lower in the article that he's been arrested 24 times in the past year, so is hardly a typical case.
    – Mohirl
    Oct 24, 2022 at 12:22
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    'the law providing for the criminal offence must be read 'compatibly' with the human rights legislation' The relevant mechanism for this here is that, when the Highways Act 1980 creates the criminal offence of obstructing the highway, it explicitly introduces a concept of a "lawful excuse" to obstruct the highway, and that phrase "lawful excuse" is sufficiently open to interpretation for the courts to make sure the ECHR right to freedom of expression is protected. Oct 24, 2022 at 16:49
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    @Mohirl I beg to differ: The article is well-written and the headline is entirely adequate ("up to"). The scheduled prison time is important because it likely exceeds the expected sentence. The article can be read as an attempt to prevent this injustice. Oct 25, 2022 at 5:48
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    One additional thought: if protestor-defendants are trying to establish a lawful excuse to obstruct the highway (or to damage property, since the Criminal Damage Act 1971 also contains a "lawful excuse" clause), it doesn't harm their case if what they're protesting against is unlawful behaviour by the Government. Oct 26, 2022 at 14:08
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    There's also the issue of jury nullification as juries have shown themselves willing to acquit climate change protestors even if the law seems to merit conviction. In contrast, injunction violations are normally decided by judges alone and there is no scope for juries to exercise their independence.
    – Stuart F
    Oct 26, 2022 at 16:28
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Injunctions are non-criminal equitable remedies available to entities to vindicate their own legal interests (a city's interest in its by-laws being obeyed; a property owner's proprietary rights; etc.)

While I cite law from Canada, I am near certain similar principles apply in the U.K., given our shared common-law and equitable roots and the fact that the Supreme Court of Canada refers to UK case authority in MacMillan Bloedel. This is reinforced by Lag's answer.

This issue arose recently in Teal Cedar Products Ltd. v. Rainforest Flying Squad, 2022 BCCA 26:

The protesters had engaged in significant, persistent, unlawful behaviour and the criminal law had not been used to stop them. It was for that reason that Teal Cedar sought to “fill the gap” with an equitable injunction.

Similarly, in MacMillan Bloedel Ltd. v. Simpson, [1996] 2 SCR 1048, a logging operator sought an injunction against protestors. It was argued that "MacMillan Bloedel's 'most obvious' remedy ... was to 'prevail upon law enforcement officials to enforce the Criminal Code'." However, the Supreme Court of Canada said:

On a practical level, this remedy offered little assistance to MacMillan Bloedel in the summer of 1993. The Attorney General of British Columbia had a specific policy not to lay criminal charges against environmental groups engaging in civil disobedience, but to leave it to affected parties to seek injunctive relief. MacMillan Bloedel submits that it was precisely because the Attorney General was not acting that it needed the protection of an interim injunction.

Yes, it is "the responsibility of the Attorney General as the chief law enforcement officer ... to see to it that the criminal law is enforced", but:

to state the obligation of the Attorney General is not to ensure that it will be discharged in such a way as to provide the required protection to citizens injured by the conduct of others. It is to fill this gap that the equitable remedy of injunctions -- injunctions which not only the parties but also all others must respect on peril of being found in contempt of court -- has developed.

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  • UK jurisprudence has the principle that statutes must be interpreted so as to be compatible with the European Convention on Human Rights, even if that differs from the natural and ordinary meaning of the words of the statute. Canadian jurisprudence does not. Oct 24, 2022 at 16:37
  • I certainly suggest deleting 'I am near certain similar principles apply in the U.K., given our shared common-law and equitable roots'. I also suggest deleting 'non-criminal', since the main effect of these injunctions is to create a pathway to criminal prosecution for contempt of court (for conduct which may or may not have been unlawful in the absence of the injunction). Oct 24, 2022 at 17:13
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    It also helps that contempt of court is easier to prosecute as a rule because it's typically is a matter of showing the evidence of the accused disobeying the judge's order to the judge who issued the order in the first place. Additionally, contempt of court can either be a civil or criminal charge depending on the nature of the order, and in civil court, the burden of proof is much lower (Jail time is usually only given in criminal contempt but fines can be handed out for both.).
    – hszmv
    Oct 24, 2022 at 19:11
  • @hszmv On a similar note, AIUI, protestors can get a Legal Aid-funded lawyer to defend themselves against a straightforward criminal charge, but can't get a Legal Aid-funded lawyer to contest an injunction, even though the award of the injunction may criminalize what is otherwise perfectly lawful conduct. Oct 28, 2022 at 14:25

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